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Gladwell's Line- Official boilover will only heighten protest tensions

by Richard Gladwell on 6 Jul 2013
America’s Cup Events Authority COO, Stephen Barclay, on stage at the 34th America’s Cup - Opening Day at America’s Cup Park ACEA - Photo Gilles Martin-Raget © http://photo.americascup.com/

America's Cup COO, Stephen Barclay has all but assured that Italy's Luna Rossa will not take part in the opening race of the Louis Vuitton Cup, with a statement calling the Italian's position 'unprincipled'.

In a statement on the americascup.com website, Barclay decried the position advanced by Max Sirena, the Luna Rossa skipper.

'We’re extremely disappointed by this,' said America’s Cup Chief Executive Stephen Barclay. 'First and foremost, this is an affront to the fans who’ve been waiting three and half years for the first race.'

'What everyone will struggle to understand is Sirena saying he’s taking his stance on principle,' added Barclay. 'This is the most unprincipled action I can think of because Luna Rossa’s case is before the Jury. There is no reason not to compete, not to try and put the first score of the regatta on the board.

'This gesture has no merit, will not get any sympathy and hurts fans, the other teams, their partners and guests, the city of San Francisco and all our stakeholders too,' Barclay continued.

'I urge Sirena to race. Having the Italian boat on the start line on Sunday is best for everyone, including Luna Rossa.'

Max Sirena maintained his consistent stance at the opening Skippers’ Press Conference that his team might not take part in Sunday’s first scheduled race of the Louis Vuitton Cup until the International Jury hears its complaint about the Safety Rules.

The Italian skipper said he would decide on Saturday whether to race or not.

There should be absolutely no doubt that Sirena's stance is backed by Team Principal Patrizo Bertelli, who has extremely strong views on fair play, and working within the America's Cup rules, and will back those first principles up with actions.

The International Jury is scheduled to meet on Monday, to consider protests over the safety recommendations introduced by Regatta Director Iain Murray, and the fact that several of these alter AC72 Class Rules without following the processes prescribed in the Protocol. The Regatta Director believes that he can do that invoking a clause in the Protocol requiring teams to comply with local regulations. The aggrieved teams believe that is a complete misinterpretation of the clause.

The Italian stance comes as little surprise to many Cup insiders. Luna Rossa's Team Principal Patrizio Bertelli has long taken the stance that the regatta will take place according to the rules, as they were when Luna Rossa entered or they will not race.

That means that any Class Rule changes have to go through the process prescribed by the Protocol and obtain the unanimous vote of all teams. That has not happened.

Further the Regatta Director had the opportunity in late May when he would have become aware that the teams were not signing off on the specific Rule changes he had drafted (as opposed to the Recommendations), and at that point should have handed the matter over to the International Jury for Mediation and then a full Hearing if Mediation was not possible to effect a resolution.

Instead Murray chose to attach his 37 Recommendations to the event Permit application to the US Coast Guard, only once that was well in process did he institute the Mediation process.

[Sorry, this content could not be displayed]The process he adopted clearly set the scene that if the teams did not agree with the Recommendations and their changes to the Class Rules, then a Catch 22 situation was established, where US Coast Guard through its issuance of the Permit could dictate the Class Rules outcome anyway.

That situation is unprecedented in the America's Cup.

Holding a Hearing after a boat has raced over a measurement issue is equally unusual, in that if the boat were to race out of class she would risk being disqualified (which won't happen in this situation). But a boat does weaken her case, by showing in a race that the point of which she is protesting has little real consequence. So on the latter grounds the Italian stance is understandable, as they do not wish to undermine their own argument.

As Emirates Team New Zealand noted yesterday the Jury Rules of Procedure prohibit Parties making public comment about matters before the Jury. Certainly the Regatta Director is one of those parties. He should not have taken the stance and made the comments that he did in his media conference if he was to stay within the Jury's dictates.

Stephen Barclay, in his role of COO of the Events Authority is in a similar position to Murray.

While both can claim that they are working for bodies that are independent of the Defender, In terms of the Deed of Gift, the 19th century document that governs the America's Cup, the Defender, in this case Golden Gate Yacht Club has two functions in that it must mount a Defence - which it does through its racing arm, Oracle Team USA. And it must organise the Match, which GGYC as the America's Cup Trustee (or current Holder of the America's Cup) does through the two commercial bodies it has established America's Cup Regatta Management, headed by Iain Murray, which handles all the water based activities of the America's Cup Regatta. America's Cup Events Authority, headed by Stephen Barclay and responsible for all shore based and commercial activities associated with the Regatta.

The Protocol for the 34th America's Cup did set up Neutral Management and did require ACEA and ACRM (and other parties) 'to act in the best interests of all Competitively' and to 'not unreasonably favor the interests of any Competitor over another'.

That was all done under the Mutual Consent provisions of the Deed of Gift, and is an innovation for this America's Cup. It was also one of the first principle of the Defence espoused by Larry Ellison owners of then Oracle BMW Racing when his team and the GGYC won the 33rd America's Cup.

But in terms of the Deed of Gift, GGYC cannot stand aside from its responsibilities as the Cup Trustee, and ultimately must properly discharge those, if the matter went to a higher authority. All that is a bridge too far, at this point of the current America's Cup ruckus.

The silence of the Cup Trustee in this matter, to date, has surprised some.

Now, is a time for cool heads. A time for little to be said, and certainly not anything that will inflame a tense situation. And a time for respect of the Jury hearing that will take place on Monday, local time.

Barclay's comments should have been along the lines, that while he regretted the stance being undertaken by Luna Rossa, he respected their decision and looked forward the Jury Hearing.

His boilover in his published statement, was not helpful, and surprising, in a difficult situation.

Article 60 of the Protocol entitled Protecting the Reputation of the America's Cup, the so-called Dalton Clause, applies equally to the Competitors as well as Officials, but so far there is no indication of whether a complaint will be made under this provision.

Ironically, AC72 sailing and the Parade of Sail was cancelled in San Francisco today due to string winds.

Post script: It is now being reported in New Zealand that Luna Rossa skipper Max Sirena has advised Emirates Team New Zealand Grinder/MD Grant Dalton in a phone call that the Italian team will not start tomorrows' race. Emirates Team NZ have issued a statement that they are prepared to race, even if it means sailing the course alone to earn the first points of the Regatta.

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